Pages - Menu

Friday, December 7, 2012

Should the state consider Subsidiary Protection applications when no claim for asylum has been made?

A
case dealing with the question of whether the state is entitled to allow
Subsidiary Protection applications only where an applicant has been refused
refugee status has been referred by the Supreme Court to the European Court of
Justice.(Haq Nawaz v Minister
for Justice, Equality and Law Reform Ireland and the Attorney General 2012)

The
Applicant is a Pakistani National who entered Ireland on a student visa in
2003. He married and Irish national and for that reason was granted permission
to remain until December 2005. The marriage was of short duration and in
February 2006, the minister notified the Applicant that he was considering
issuing a deportation order. Nevertheless the applicant stayed in the country
as a full time student.

The
applicant did not at any time apply for asylum. He submitted that he does not
fear persecution by reason of race, religion, nationality, political opinion,
or membership of a particular social group and that he is therefore, not a
refugee. However the applicant claims that he is afraid to return to Pakistan
because of the indiscriminate violence occurring there.

In
June 2009 the applicant made an application for subsidiary protection. The
Minister replied stating that the basis formaking an application was that the person applying had been refused
refugee status. Since no applicationfor
refugee status had ever been made by the applicant, it was not possible to
apply for subsidiary protection status.

The
applicant seeks an order quashing the Minister’s decision refusing to consider
his application for subsidiary protection and requiring him to determine it.
Secondly he seeks a declaration that the national regulations are unlawful and
incompatible with the Qualification Directive insofar as they provide that the
Minister may not consider an application for subsidiary protection of a person
who has not failed in an asylum application.

The
applicant submits thatneither Article
78 of the treaty not the Qualification Directive limits the right to apply for
subsidiary protection to failed asylum seekers.

In
addition he submits that he does not have a well founded fear of being
persecuted for a Geneva Convention reason. He says he cannot even complete the
asylum application form without selecting an untrue reason.

The
applicant submits that it is contrary to the principle of good administration
guaranteed by Article 41 of the charter of fundamental Rights of the European
Union that he should be required to make an application for refugee status in
circumstances where he accepts that he is not entitles to and does not claim
that status.

The
Minister argues that neither the Qualifications Directive not the regulations
permitted the application to make a “stand-alone” application for Subsidiary
protection. Submitting that the Geneva convention is the cornerstone of the
international legal regime for the protection of refugees and that that
position can only be maintained if an application for protection is assessed,
first of all, to establish if the applicant in question qualifies as a refugee,
with the question of eligibility for subsidiary protection being addressed only
where it has been held that he does not.

Additionally
the minister argues that the Qualifications Directive Is not concerned with
procedures at all and does not impose and procedural obligation on a member
state to accept such an application merely because a person subjectively
considers that he is not a refugee.

In
their consideration, the Supreme Court reiterated that the regulations do not
confer any power on the minister to consider an application other that “a person whose application for asylum has
been refused by the minister…”

The
court considers the true question at issue in this case is whether the
Qualification Directive requires Member States, intheir implementing measures, to make it
possible for a third country national to make an application for subsidiary
protection status without making any application for refugee status.

The
Supreme court concluded that in order to determine it is necessary for the
court to have answers to some questions and so has referred the case to the Courts
of Justice of the European Union with the following question:

“Does Council Directive 2004/83/EC,
interpreted in the light of the principle of good administration in the law of
the European Union and, in particular, as provided by Article 41 of the Charter
of Fundamental rights of theEuropean
Union, permit a member state which has not adopted a single administrative
procedure for determining both applications for refugee status and subsidiary
protection status, to provide in its law, when implementing the Directive, that
a third country national or stateless person be enabled to apply for subsidiary
protection status only when that person has applied for and been refused
refugee status in accordance with national law” .